Ocampo v Victorian WorkCover Authority
[2022] VCC 189
•3 March 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
| SERIOUS INJURY LIST |
Case No. CI-20-01085
| ROY OCAMPO | Plaintiff |
| v | |
| VICTORIAN WORKCOVER AUTHORITY | Defendant |
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JUDGE: | HER HONOUR JUDGE ROBERTSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 July 2021 | |
DATE OF JUDGMENT: | 3 March 2022 | |
CASE MAY BE CITED AS: | Ocampo v Victorian WorkCover Authority | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 189 | |
REASONS FOR JUDGMENT
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Subject:ACCIDENT COMPENSATION
Catchwords: Serious injury – injury to the lumbar spine – pain and suffering – credibility
Legislation Cited: Workplace Injury Rehabilitation and Compensation Act 2013 (Vic), s325(1) and (2)
Cases Cited: Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545; Doolan v Rayners Sawmills Pty Ltd [2008] VSCA 219; Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179; Humphries and Anor v Poljak [1992] 2 VR 129; Said v Smart Group Management Pty Ltd [2021] VCC 746; Dean v Crossway Holdings Pty Ltd [2011] VSCA 198; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60; TTB SMS Pty Ltd v Reading [2020] VSCA 203; Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR; Sabo v George Weston Foods [2009] VSCA 242; Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145; Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1; Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260; Haidar v Transport Accident Commission [2016] VSCA 182; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Transport Accident Commission v Streicher [1998] 4 VR 439; Petrovic v Victorian WorkCover Authority [2018] VSCA 243; Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108; Transport Accident Commission v Zepic [2013] VSCA 232; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167; Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA; Pulling v Yarra Ranges Shire Council [2018] VSC 248; Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12; Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292; Stijepic v One Force Group Aust Pty Ltd and Victorian Workcover Authority [2009] VSCA 181; Sutton v Laminex Group Pty Ltd (2011) 31 VR 100; Transport Accident Commission v Kamel [2011] VSCA 110; Durrant v 101 Warehousing Pty Ltd [2021] VCC 834; Petkovski v Galletti [1994] 1 VR 436
Judgment: Leave granted to the plaintiff to commence a common law proceeding for pain and suffering damages.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr L B R Allan | Zaparas Lawyers |
| For the Defendant | Mr B R McKenzie | Minter Ellison |
Table of Contents
Introduction
Background
Medical Panel Opinion
The Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon
Mr David de la Harpe, orthopaedic surgeon
The Defendant’s medico-legal reports
Dr Murray Gee, occupational physician
Associate Professor Anthony Buzzard, surgeon
Dr Dush Shan, consultant psychiatrist
Dr Joseph Slesenger, specialist occupational physician
CoWork Pty Ltd Vocational Assessment and Labour Market Analysis Report
Legal principles
Evidence
Submissions
Plaintiff’s submissions
Defendant’s submissions
Credibility
Relevance and use of the Medical Panel Opinion
Injuries suffered by the Plaintiff
Low back injury – 22 October 2015
Low back and right elbow injury – 23 August 2016
Permanence
Impairment consequences
Consequences of the 22 October 2015 low back injury
Consequences of the 23 August 2016 low back injury
Mr Ocampo’s experience of pain
Medication and medical treatment
Return to work
Interrupted sleep
Mobility
Activities of daily living
Sports and hobbies
Driving
Findings
Conclusion
HER HONOUR:
Introduction
1The plaintiff, Mr Roy Ocampo, in the course of his employment with Monza Imports Australia Pty Ltd (“Monza”), reported injury to his lower back on 22 October 2015 whilst lifting heavy loads, an injury to his right elbow on 23 February 2016 when lifting a carton, and an aggravation injury to his right elbow and his lower back on 23 August 2016 due to continuous lifting of 20 to 25-kilogram boxes.
2By Originating Motion dated 13 March 2020, Mr Ocampo sought leave pursuant to s335(2)(d) of Division 2 of Part 7 of the Workplace Injury Rehabilitation and Compensation Act 2013 (Vic) (“the Act”),[1] to bring proceedings to recover damages for pain and suffering and pecuniary loss in respect of those injuries. At the hearing, Mr Ocampo confined his application to pain and suffering damages only and did not persist with a claim for leave to bring proceedings to recover pecuniary loss damages.
[1] Amended Originating Motion dated 13 July 2020
3The impairment, or loss of a body function relied upon by Mr Ocampo, was limited to his lumbar spine.
4It was accepted by the parties that Mr Ocampo’s lumbar spine impairment was permanent.
5The principal issue to be determined at the hearing was whether the lumbar spine impairment constituted a “serious injury” for the purposes of paragraph (a) of the definition of “serious injury” in s325(1) of the Act.
6I have concluded that the consequences of the aggravation injury which Mr Ocampo sustained to his low back on 23 August 2016 are more than “significant or marked” and “at least very considerable” and consequently, that he has suffered a “serious injury”. Accordingly, I grant Mr Ocampo leave to commence a proceeding to recover pain and suffering damages.
Background
7Mr Ocampo was born in the Philippines in July 1964. He was fifty-six years old at the date of the hearing.
8He can read and write in Filipino and also in English, but not complicated words.
9In the Philippines, Mr Ocampo studied undergraduate engineering between 1981 and 1985 and obtained a certificate as a computer technician in 1992.
10He migrated to Australia in 2007.
11In 2018/2019, he completed a Certificate II in Computer Assembly and Repair and has partially completed a Certificate II in Security Operations and a Certificate in Aged Care.
12Mr Ocampo commenced working with Monza in 2011 on a casual basis, becoming a permanent employee in October 2013, after which he worked as a storeman in the replenishment/putaway team on a full-time basis. His work involved moving stock from bulk locations to pick face locations, intermittently handling and unloading cartons ranging from 1 kilogram to 30 kilograms and driving a stock picker forklift or wave machine.
13Mr Ocampo suffered injury to his lower back on 22 October 2015. Mr Ocampo told the Medical Panel that he was sent for scans at the time and was treated with anti-inflammatory medication. He subsequently returned to work, undertaking his pre-injury duties. The Medical Panel noted that CT scans of the lumbar spine dated 29 October 2015 were reported as showing smooth and anatomic alignment with maintenance of vertebral body heights. A mild, broad-based posterior disc bulge combined with mild bilateral facet joint hypertrophy and degeneration to produce moderate bilateral exit neuroforaminal narrowing were reported.
14On 23 August 2016, there was a further injury to Mr Ocampo’s lower back and right elbow while he was unloading a 40-foot container of long boxes weighing 20 to 25 kilograms each. Mr Ocampo said it was repetitive and heavy work. He noticed pain whilst working which became more apparent after completing the task.
15Mr Ocampo sought medical assistance following the incident from the Western Family Medical Centre. It was recorded in a letter to the Accident Compensation Conciliation Service from the Western Family Medical Centre that Mr Ocampo exhibited a tender lower back at the time of examination.
16Following the incident on 23 August 2016, Mr Ocampo returned to work on light duties in the pick area, where he remained on a full-time basis. His duties involved driving the LO (stock picker) and the reach forklift while standing. At the time, he had a medical restriction preventing him lifting more than 7.5 kilograms. His usual tasks involved tidying up empty cartons, shrink wrapping and general housekeeping. He also worked in the pick pack/despatch area handling items from 1 kilogram to 5 kilograms. He continued to have intermittent flare-ups at work which were treated conservatively.
17Mr Ocampo was made redundant on 24 January 2018.
18Mr Ocampo’s lower back symptoms have persisted.
19Mr Ocampo was referred for physiotherapy at Life Physiotherapy. He saw Ms Kim Diep, physiotherapist, who treated him with deep tissue massage, mobilisations and manipulations, electrotherapy, therapeutic taping, deep dry needling and a home exercise program.
20On 19 August 2019, Dr Josefina Puno at the Western Family Medical Centre reported that Mr Ocampo’s lower back will continue to deteriorate as he gets older, making his prognosis poor. His posture was jeopardised to compensate for the pain and was likely to cause disfigurement. He relies on pain relief and physiotherapy. Dr Puno opined that Mr Ocampo had no capacity for work because of his back injury and the uncertainty about when it will flare up. She also noted that Mr Ocampo had been unable to obtain any work and that he was depressed and embarrassed by this.
21Due to ongoing low back symptoms, Mr Ocampo was sent for MRI scans in September 2019.
22An MRI scan of the lumbar spine taken on 3 September 2019 revealed mild L3-4 lumbar canal stenosis secondary to a central and right L3-4 disc prolapse with impingement of the right L4 nerve root within the right lateral recess. There was minor L4-5 lumbar canal stenosis secondary to a diffuse L4-5 disc bulge with impingement of the thecal sac but no convincing nerve root impingement at that level. There was also moderate to marked mid to lower lumbar spondylosis and mild to moderate bilateral L3-4, L4-5 and L5-S1 facet joint osteoarthritis.
23On 25 October 2019, a report was prepared by Ms Diep from Life Physiotherapy. It stated the main reason for Mr Ocampo’s inability to return to pre-injury work was as a result of chronic pain he suffered in his lower back. Mr Ocampo’s future prognosis was considered to be poor, with minimal capacity for his pre-injury work duties. His lower back pain prevented him from being able to sleep, which meant he woke tired and fatigued with spine stiffness and dysfunction. Most normal activities of daily living were stated to have been affected. He was unable to participate in household chores such as gardening, cleaning and other home maintenance without aggravating his lower back. This had a significant negative effect on his enjoyment and quality of life.
24In August 2020, Mr Ocampo was referred to an orthopaedic spinal surgeon, who advised continuance of conservative management.
25A further report from the Western Family Medical Centre dated 7 September 2020 confirmed the presence of the L3-L5 lumbar stenosis and also showed spondylosis and osteoarthritis. It said that Mr Ocampo was “living in daily pain and trying to cope the best he can”.
26When examined by the Medical Panel members on 4 and 10 March 2021, Mr Ocampo described experiencing constant central low back pain of variable intensity. The pain did not radiate from the spine, and he did not experience any disturbance of the bladder or bowel or lower extremity tingling or numbness. He said that he also had more acute episodes of pain on a weekly to monthly basis, triggered by any heavy activities, which could last for “almost 2 days”. When his back was painful, he said he did nothing, but when it was not painful, he could drive his wife to work, shop and cook a little. He said he could “hardly walk” when he was experiencing severe pain. He described a sitting tolerance of 5 to 30 minutes, depending on the pain, and being able to drive for 30 minutes if he was not in pain. He said he was independent in his activities of daily living when not experiencing an exacerbation of pain. He stated that his libido was intact, but pain impacted on intimacy.
27The Panel noted the account of Mr Ocampo’s pain which was provided by Dr Puno, Mr Ocampo’s treating general practitioner. Although the Panel ultimately reached a different conclusion, Dr Puno observed that Mr Ocampo struggled with ongoing pain which, given his age, was expected to get worse. She said he would need ongoing support.
28Mr de la Harpe, Dr Khayyam Altaf, senior medical advisor – occupational medicine, and Dr Joseph Slesenger also accepted that Mr Ocampo would not be able to return to his pre-injury duties.
29On examination by the Medical Panel, there was no evidence of spasm or guarding. Mr Ocampo’s lumbar spine movement was only mildly restricted.
30Mr Ocampo said he attended weekly physiotherapy and used Voltaren Gel. He said he was being prescribed Targin 5/2.5-milligram as required for pain. The Medical Panel noted that he last took Targin “two days ago” after he had been helping his son do some “chain sawing” and that night his back was painful.
31On 5 June 2018, Mr Ocampo sought reinstatement of his weekly payments of compensation in the Magistrates’ Court. Those proceedings were transferred to the County Court.
32On 16 May 2019, Mr Ocampo lodged a Claim for Impairment Benefits in respect of injury to the right elbow, lumbar spine, right arm, right shoulder and psychological injury. By notice dated 31 July 2019, Allianz, as agent for the Authority, accepted liability for injuries described as “aggravation of lumbar spine” and “right elbow” but rejected liability for the other claimed injuries.
33The Medical Panel was asked to assess Mr Ocampo in respect of his “serious injury” application. The Medical Panel provided a Certificate of Opinion dated 13 April 2021 (“Medical Panel Opinion”) in response to a referral from his Honour Judge Wischusen. The Medical Panel gave Reasons for their decision (“Medical Panel Reasons”).
Medical Panel Opinion
34The Medical Panel was asked various medical questions including the nature of the plaintiff’s lumbar spine condition. The Panel’s answer was that the condition was “a mild aggravation of pre-existing lumbar degenerative changes without radiculopathy”.
35The Medical Panel was then asked questions about whether the plaintiff’s lumbar spine condition resulted in him having a “current work capacity” within the meaning of the Act or “no current work capacity”. The Medical Panel determined that the plaintiff had a current work capacity.
36Consequential questions were asked about what employment would constitute “suitable employment” and whether the injury was permanent.
The Plaintiff’s medico-legal reports
Mr Thomas Kossmann, orthopaedic surgeon
37Mr Kossmann examined Mr Ocampo on 29 October 2015 and 23 August 2016 via use of a video conferencing system. A report was prepared dated 10 July 2020.
38In his report, Mr Kossmann outlined Mr Ocampo’s employment history and the history of his injuries. Mr Ocampo’s past injuries included an injury to his lower back on 29 October 2015 when he was lifting heavy loads from a container. He was treated with painkillers and anti-inflammatories and had time off work. A CT scan revealed that Mr Ocampo had disc desiccation at the L4-L5 discs and moderate L5-S1 exit neural foraminal narrowing.
39A second injury occurred on 23 August 2016, again when Mr Ocampo was helping to unload some heavy containers. He developed pain in his back and right elbow, radiating to his right arm. He continued to work but experienced increasing pain in his lumbar spine. He was placed on light duties by his general practitioner and treated with Celebrex.
40Mr Ocampo described suffering from ongoing pain issues in his lumbar spine. He was referred for an MRI scan of the lumbar spine on 3 September 2019.
41The MRI report described mild L3-L4 lumbar canal stenosis secondary to a central and right L3-L4 disc prolapse and facet joint hypertrophy causing impingement of the right L4 nerve root within the lateral recess. There was also a minor L4-L5 lumbar canal stenosis secondary to a diffuse L4-L5 disc bulge which was impinging the thecal sac. Additionally, there was moderate to marked mid to lower lumbar spondylosis and mild to moderate bilateral L3-L4, L4-L5 and L5-S1 facet joint osteoarthritis.
42Mr Ocampo had undertaken physiotherapy.
43At the time Mr Ocampo saw Mr Kossmann, he was complaining of pain in his lumbar spine radiating intermittently into both his knees. He had difficulty putting on socks and shoes and difficulty sleeping. He said the injuries had a profound impact on his social, domestic and recreational activities. He was not about to undertake any physically demanding work in the house or in the garden. His wife took care of the household chores, and they got someone to mow the lawn.
44Mr Kossmann undertook a further physical examination of Mr Ocampo on 10 July 2020, again using secure video conferencing facilities. Movements performed were measured on screen. No radiology reports were provided to Mr Kossmann.
45Mr Kossmann considered that Mr Ocampo had no work capacity.
46Mr Kossmann diagnosed a lumbar spondylosis in the form of a mild L3-L4 lumbar canal stenosis secondary to a central and right L3-L4 disc prolapse and facet joint hypertrophy causing impingement of the right L4 nerve root within the right lateral recess; minor L4-L5 lumbar canal stenosis secondary to a diffuse L4-L5 disc bulge which was impinging the thecal sac, and a moderate to marked mid to lower lumbar spondylosis and mild to moderate bilateral L3-L4, L4-L5 and L5-S1 facet joint osteoarthritis.
47Mr Kossmann considered Mr Ocampo’s prognosis to be poor. He opined that Mr Ocampo would continue to suffer for the foreseeable future from pain in his lumbar spine, radiating intermittently in his knees for which he would require treatment with pain medication and anti-inflammatories. He also considered that physiotherapy and hydrotherapy might be of benefit. Mr Ocampo would need to carefully monitor his treatment and might develop further degenerative changes. He was restricted in bending, lifting, twisting, stooping, pushing, pulling and lifting, repetitive or prolonged use of his back, overhead activities, kneeling, squatting or crouching, prolonged sitting or standing or walking. He considered that Mr Ocampo’s lumbar spine injury had caused a “profound impact on all aspects of his life”.
Mr David de la Harpe, orthopaedic surgeon
48Mr de la Harpe reviewed Mr Ocampo on 4 August 2020 at the Epworth consulting rooms. He prepared a report dated 14 August 2020.
49Mr de la Harte described Mr Ocampo’s development of low back pain in 2015 while working in a warehouse unloading 40-foot containers and lifting boxes.
50He then described Mr Ocampo’s presenting complaint of ongoing lower back pain which was aggravated by activities such as working around the house. Radicular pain was not a feature of his presentation.
51Mr de la Harte recorded that Mr Ocampo had good and bad days. He was taking Tramadol, which did not help, but he also intermittently used Targin which he found helpful. He was undergoing physiotherapy, which involved exercises and massage.
52On examination, Mr de la Harte observed a normal stance and gait. There was a range of movement of the lumbar spine. Flexion was 75 degrees and extension was 20 degrees. There were no neurological abnormalities in the lower limbs. He considered the findings of the MRI scan normal for someone of Mr Ocampo’s age.
53Mr de la Harte diagnosed Mr Ocampo with mechanical and mild degenerative back pain aggravated by activity and weather changes. He did not consider that the mild stenosis caused nerve root compression and did not observe radicular symptoms.
54He considered Mr Ocampo’s prognosis for returning to a job involving manual labour to be poor and that he had no capacity for his pre-injury employment.
55He also noted that Mr Ocampo intermittently suffered from significant pain and suffering when he experienced exacerbations of his degenerative and mechanical back pain. Mr de la Harte considered that this would have an impact on Mr Ocampo’s social and domestic activities and lifestyle.
The Defendant’s medico-legal reports
Dr Murray Gee, occupational physician
56Dr Gee assessed Mr Ocampo at the Bridge Street Clinic on 30 January 2018. Mr Ocampo did not bring any investigation records with him. The purpose of the assessment was to assess Mr Ocampo’s capacity and ability to return to pre-injury duties.
57After taking a history of Mr Ocampo’s injury to his lower back in August 2016, Dr Gee recorded that Mr Ocampo said his injuries did not settle with the progression of time and he continued to have intermittent back pain with twisting or stooping movements.
58Mr Ocampo was recorded as taking occasional paracetamol on an ‘as needs’ basis, but it was noted that he preferred not taking any medications at all. He reported suffering from an upset stomach, and he was unable to take anti-inflammatory medication. He reported occasional use of Voltaren topically and previous physiotherapy.
59Upon examination, Dr Gee observed that Mr Ocampo had normal lumbar lordosis. There was no spinal tenderness or muscle spasm on palpation. His movements were reasonable in nature, and he straightened with normal rhythm. No neurological abnormality was detected in Mr Ocampo’s lower limbs.
60Dr Gee concluded that Mr Ocampo had a soft tissue strain to his lower back, and the persisting symptoms he was reporting were attributable to his work-related injury on 23 August 2016.
61In his opinion, Mr Ocampo had capacity to fulfil his pre-employment duties.
62Dr Gee’s opinion that Mr Ocampo had capacity to perform his pre-injury employment was confirmed in a subsequent report dated 8 October 2018.
63On 12 February 2020, Dr Gee prepared a further report, having been provided with a copy of the 3 September 2019 MRI scan, the report of Mr Ocampo’s general practitioner, Dr Puno, dated 19 August 2020 and the independent medical opinion of Dr Greg Etherington, spinal surgeon, dated 1 October 2019. He opined that at the time he prepared this report, he was satisfied that his opinion on Mr Ocampo’s ability to work was maintained. He noted that he had not reviewed Mr Ocampo again since his initial assessment and consequently could not comment on his condition over the subsequent two years. He recorded Dr Puno’s opinion that Mr Ocampo had experienced worsening symptoms but opined that “if his clinical condition has materially changed, I am unaware of this”.
Associate Professor Anthony Buzzard, surgeon
64Associate Professor Buzzard prepared three reports dated respectively 18 July 2019, 12 February 2020 and 7 April 2020.
65Associate Professor Buzzard first saw Mr Ocampo on 18 July 2019 in his rooms. He noted difficulty with a language barrier. Mr Ocampo did not bring any x-rays with him. However, in his subsequent report dated 12 February 2020, Associate Professor Buzzard says that he did not have any direct imaging of Mr Ocampo’s low back available “aside from the report dated 28 October 2015”. So, although the x-ray was not available, the report of the 28 October 2015 x-ray appears to have been available.
66Mr Ocampo reported that he first saw a doctor in respect of his lower back and sore right elbow in August 2016. He described this as being “months” after the incident. He said he saw Dr Puno of Western Health and had x-rays taken and that he had undergone physiotherapy. His back was getting better. He was taking one Targin per day.
67Associate Professor Buzzard took an employment history. He described being told by Mr Ocampo that he had been made redundant by his employer in 2018, prior to which he had been doing his normal duties. He had not worked since being made redundant.
68At the time of the consultation, Mr Ocampo said that he spent his days walking and doing exercises for his back. He did not drive a car for more than 5 to 10 minutes per day. He did drive to the appointment. Mr Ocampo said that he is able to undertake activities of daily living, namely dressing himself, washing himself, feeding himself and toileting.
69On examination, Mr Ocampo was observed to move freely. He did not have any gait abnormality and he was not using any walking aids.
70After referring to the language difficulties he experienced during his consultation with Mr Ocampo, Associate Professor Buzzard opined that Mr Ocampo had sustained a soft tissue injury in his low back region in the course of his employment. He noted an entry in the general practice notes from the year before when Mr Ocampo was having back pain following lifting at work. There was also imaging of Mr Ocampo’s low back which had been taken before the accident in question. However, Associate Professor Buzzard could not find any evidence of decreased range of movement of Mr Ocampo’s back before the date Mr Ocampo stated he was injured: 23 August 2016.
71Associate Professor Buzzard considered that Mr Ocampo’s ongoing back symptoms were relatively minor. He could not elicit a history of evidence of any nerve root involvement or sciatica. He considered physiotherapy to be reasonable, and oral analgesic treatment.
72In his subsequent report dated 12 February 2020, Associate Professor Buzzard referred to the 28 October 2015 imaging report taken before the accident in question on 23 August 2016. He noted that the earlier imaging report demonstrated some degenerative changes, although the degenerative changes in the 3 September 2019 report appeared to be more significant than those in the earlier report. There appeared to have been a deterioration in Mr Ocampo’s spine between the two sets of images.
73Associate Professor Buzzard then referred to the report of Mr Etherington and the history he obtained from Mr Ocampo of an injury in 2015 that lasted for about a month. Mr Ocampo was described by Mr Etherington as “relatively” good until 23 August 2016. Associate Professor Buzzard understood that to mean that Mr Ocampo had a history of ongoing back pain following the 2015 incident, but it was not severe back pain. Associate Professor Buzzard raised the question whether the pain was emanating from the segments of the lumbar spine or from the sacroiliac joints but noted that this was unresolved.
74Associate Professor Buzzard next referred to the fact that he had not seen Mr Ocampo since July 2019; however, he observed that the reports of Mr Etherington and Dr Puno suggested that Mr Ocampo’s condition had not improved. He opined that more invasive treatment for Mr Ocampo’s back may have been reasonable. He considered that the fresh material had caused him to alter his opinion in relation to Mr Ocampo’s low back.
75In his third report dated 7 April 2020, Associate Professor Buzzard opined about Mr Ocampo’s capacity to return to pre-injury employment. His opinion was that it was reasonable that there would be a lifting limit which would not permit him to work in the aged care sector. Work as a warehouse clerk or officer and in security would also depend on lifting activities. From a purely physical perspective, Mr Ocampo was considered to be capable of working full time in a job with computers.
Dr Dush Shan, consultant psychiatrist
76Dr Shan prepared two reports dated 22 October 2019 and 31 March 2020.
77The first report contained information about Mr Ocampo’s complaints and treatment, his family, personal, occupational and medical histories and examination of his mental state.
78Dr Shan recorded that Mr Ocampo had a driver’s licence and still attended a Filipino community centre in which he participates in a walking group.
79Dr Shan’s second report dealt with the question whether Mr Ocampo had capacity to undertake certain types of employment. In Dr Shan’s opinion, Mr Ocampo was suitable for all duties from a solely psychiatric viewpoint with no restrictions.
Dr Joseph Slesenger, specialist occupational physician
80Dr Slesenger prepared three reports following examination of Mr Ocampo on 29 October 2019 (dated 4 November 2019, 17 February 2020 and 9 April 2020 respectively).
81In his first report dated 4 November 2019, Dr Slesenger described Mr Ocampo’s employment and history of his presenting complaint, noting he was asymptomatic before the injury. He noted that Mr Ocampo had residual lower back pain which is severe and constant. The pain radiates into his mid back, but not his legs. Mr Ocampo could sit, stand and walk for 20 minutes, but had difficulty with repetitive right upper limb activity.
82Mr Ocampo was noted to be taking Lyrica 75 milligrams once daily and Tramadol 50 milligrams between one and three times a day, two or three times a week.
83In relation to his activities of daily living, Dr Slesenger observed that Mr Ocampo could dress, wash, shower and toilet himself. He was able to attend to light cooking, shopping and light cleaning. He doid not engage in gardening duties and his family assists him with other domestic tasks.
84Dr Slesenger recorded that Mr Ocampo was not engaging in sports or hobbies at the time of the injury.
85Dr Slesenger’s opinion with respect to Mr Ocampo’s low back was that he had a soft tissue injury of his lumbar spine, aggravation of degenerative diseases of the lumbar spine, chronic lower back pain with radiating features but no confirmed evidence of radiculopathy. The injury caused Mr Ocampo’s spinal impairment which was likely to be ongoing into the foreseeable future.
86Mr Ocampo did not have capacity to return to work in his pre-injury role, but he had capacity for suitable employment on a full-time basis.
87In his second report dated 17 February 2020, Dr Slesenger reviewed additional documentation including the report of Dr Puno dated 19 August 2019, the report of Mr Etherington dated 1 October 2019 and an MRI scan of the lumbar spine dated 3 September 2019. He considered that the additional documentation provided was consistent with the evidence disclosed to date and he did not alter his opinion.
88In his third report dated 9 April 2020, Dr Slesenger noted that Ms Ocampo had previously been examined on 29 October 2019. He considered that the third report should be read in conjunction with his previous reports dated 4 November 2019 and 17 February 2020.
89Dr Slesenger referred to his earlier opinion that Mr Ocampo retained capacity for work with restrictions and his advice against Mr Ocampo returning to his pre-injury role.
90Next, Dr Slesenger commented on a Vocational Assessment and Labour Market Analysis Report by CoWork Pty Ltd dated 27 March 2020. In his opinion, the job demands of roles as an ICT customer support officer and an administration clerk (warehousing, transport, logistics) fitted within Mr Ocampo’s capacity limits. He would be able to return to work in those roles with the restrictions Dr Slesenger had outlined. Dr Slesenger did not consider the role as a personal carer/respite carer (aged care and/or disability support) or as a security officer to be suitable for Mr Ocampo.
CoWork Pty Ltd Vocational Assessment and Labour Market Analysis Report
91Ms Katrina Clarke, occupational therapist at CoWork Pty Ltd, prepared a Vocational Assessment and Labour Market Analysis Report dated 27 March 2020.
92The information Mr Ocampo provided to Ms Clarke about his daily activities and the consequences of his injury, is of particular relevance. The report noted that Mr Ocampo was able to perform personal care and several household chores independently but on a bad day needed assistance with putting on socks and underwear. The report recorded that since working with his new physiotherapist, his symptoms had improved by some 40 to 50 per cent, and that he now had bad days around two times per month.
93He could assist with the cooking. He had access to and could drive a car and could use public transport. He could sit for 30 minutes to an hour, stand for two hours, walk for 500 metres and lift objects weighing up to 10 kilograms.
94Ms Clarke recorded that Mr Ocampo had applied for a number of roles without success, as he had been unable to attend either the interviews or work, due to “having a bad day”. Mr Ocampo said that he had commenced a Certificate II course in Aged Care but that he had been unable to manage the course due to his pain. He had only been able to complete one month of the six-month course before he stopped as the “full day” of the course was “too much for [his] back”. He had also commenced a security operations’ course, of which he had only been able to complete two weeks of the three-month course. He said that this was because his “mind is not good enough”, as he was “not good at reading” English.
95Ms Clarke found that there were a number of potentially suitable employment alternatives for Ms Ocampo, including ICT customer support officer, warehousing clerk, respite carer and gatehouse security officer. She noted that since ceasing full-time work in January 2018, he had not experienced an aggravation through further injury, and it could therefore be reasoned that he maintained a work capacity for full-time employment, providing it is within his residual capacity.
Legal principles
96Mr Ocampo bears the burden of proof on the application. The standard of proof is on the balance of probabilities.
97“Serious injury” is defined in s325(1) of the Act. Sub-paragraph (a) of the definition provides:
“serious injury means—
(a) permanent serious impairment or loss of a body function;
… .”
98The Act distinguishes between injuries and impairments. It is necessary that a plaintiff establish that they suffered a compensable injury and that such injury is in its consequences a “serious injury”.
99Where a plaintiff is referred to a medical panel for assessment for a serious injury application under the Act, s313(4) of the Act provides that:
“(4)For the purposes of determining any question or matter, the opinion of a Medical Panel on a medical question referred to the Medical Panel—
(a)is to be adopted and applied by any court, body or person; and
(b) must be accepted as final and conclusive by any court, body or person—
irrespective of who referred the medical question to the Medical Panel or when the medical question was referred.”
100The effect of s313(4) is that a Panel’s opinion must be “adopted and applied” and must be accepted as “final and conclusive by any court”. The Court is bound by the Medical Panel’s certificate of opinion as to the injury or diagnosis.[2] This means that it is not open to a plaintiff to contend that they have an injury or diagnosis other than as expressed by the Panel. However, whether a plaintiff has a “serious injury” does not focus on the character of an injury. Rather, the focus is on the consequences of injury[3] or the categories of harm consequential upon injury[4] to the particular plaintiff.[5] The result is that where a Panel characterises the medical condition/injury as opposed to its consequences, changes in symptoms following delivery of a Panel’s opinion, can be taken into account in assessing the “severity” of the compensable injury.[6] Further, because there is no precise equivalence between the “injury” and the “serious injury”,[7] descriptions characterising the nature of the injury are not conclusive as to whether the impairment consequences of an injury mean that the injury is a “serious injury”.
[2] Yirga-Denbu v Victorian WorkCover Authority (2018) 57 VR 545 (“Yirga-Denbu”)
[3] Doolan v Rayners Sawmills Pty Ltd[2008] VSCA 219 at paragraph [71]
[4] Georgopoulos v Silaforts Painting Pty Ltd [2012] VSCA 179 (“Georgopoulos”) at paragraph [62]
[5] Humphries and Anor v Poljak [1992] 2 VR 129 (“Poljak”)
[6] Said v Smart Group Management Pty Ltd (ACN 159 333 061) [2021] VCC 746 (“Said”)
[7] Georgopoulos (supra) at paragraphs [63]-[64]
101Where a plaintiff has been injured on different occasions, the Court is required to separate out the components of each injury. The injuries cannot be aggregated, even if they affect the same body part.[8] If impairment or loss is demonstrated, consideration is required as to whether the injury responsible for such loss or impairment is a “serious injury”.
[8]Dean v Crossway Holdings Pty Ltd [2011] VSCA 198 at paragraph [72]; AG Staff Pty Ltd v Filipowicz; Arnold Ribbon Co Pty Ltd v Filipowicz [2012] VSCA 60
102For an injury to qualify as a “serious injury”, the Court must determine whether the pain and suffering consequences of the injury satisfy the narrative test identified in Poljak[9] and codified in s325(2) of the Act.
[9] Poljak (supra)
103Section 325(2) of the Act provides:
“(a)…
(b)the terms serious and severe are to be satisfied by reference to the consequences to the worker of any impairment or loss of a body function, … as the case may be, with respect to—
(i)pain and suffering; or
(ii)loss of earning capacity—
when judged by comparison with other cases in the range of possible impairments or losses of a body function, … or mental or behavioural disturbances or disorders respectively;
(c)an impairment or loss of a body function … is not to be held to be serious for the purposes of section 335(2) unless—
(i)the pain and suffering consequence; or
(ii)the loss of earning capacity consequence—
is, when judged by comparison with other cases, in the range of possible impairments or losses of a body function, … as the case may be, fairly described as being more than significant or marked, and as being at least very considerable;
… .”
104In TTB SMS Pty Ltd v Reading,[10] the Court of Appeal identified that in a pain and suffering case:
(a) Serious injury means permanent serious impairment or loss of a body function.
(b) An impairment shall not be held to be serious unless the pain and suffering consequence is, when judged by comparison with other cases in the range of possible impairments or losses of a body function, fairly described as being more than significant or marked, and as being at least very considerable.
(c) In assessing the seriousness of the claimed impairment consequences, a court is required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.
[10] [2020] VSCA 203
105The consequences of the injury to a plaintiff, when judged objectively by comparison with other cases in the range of possible impairments or losses, must be at least “‘very considerable’ and certainly more than ‘significant’ or ‘marked’”.[11]
[11]Poljak (supra) at 140 (per Crockett and Southwell JJ)
106The assessment of whether an injury is a “serious injury” is largely a question of impression and value judgment[12] as to relative incapacity falling to be resolved by consideration of the evidence as a whole.[13] It requires the Court to bring to account all factors personal to the plaintiff which emerge on the evidence as relevant to the assessment, and to make a value judgement in accordance with the principles enunciated in Poljak[14] as to whether the impairment consequences are “serious”. This requires the Court to try to place a particular claimant’s injury within a spectrum of seriousness of injuries by comparing a worker’s impairment, not just with other types of impairment of a similar kind, but also with other types of physical impairment.[15] Within that range is a point at which an injury becomes “very considerable”.[16]
[12]See Kelso v Tatiara Meat Co Pty Ltd (2007) 17 VR at 628 (“Kelso”); Sabo v George Weston Foods [2009] VSCA 242 (“Sabo”) at paragraph [67]
[13]Victorian WorkCover Authority v Papaconstantinou [2021] VSCA 145 referring to Yirga-Denbu (supra) at 573, paragraph [89]
[14]Poljak (supra) at 140 (per Crockett and Southwell JJ); Kelso (supra) at 628; Sabo (supra) at paragraph [67]
[15] Haden Engineering Pty Ltd v McKinnon (2010) 31 VR 1 (“Haden”)
[16] Dwyer v Calco Timbers Pty Ltd (No 2) [2008] VSCA 260 (“Dwyer”) (Nettle, Ashley and Dodds-Streeton JJA)
107In Haden,[17] the Court of Appeal identified that the pain and suffering consequences of an injury encompass both the plaintiff’s experience of pain as well as the disabling effect of the pain on the plaintiff’s physical capabilities and enjoyment of life. The intensity, frequency, and duration of the pain must also be assessed. Their honours noted:
“The evidentiary basis of the pain assessment will ordinarily comprise the following:
(a) what the plaintiff says about the pain (both in court and to doctors);
(b) what the plaintiff does about the pain (eg medication, rest, seeking medical treatment);
(c) what the doctors say about the extent and intensity of the plaintiff’s pain; and
(d) what the objective evidence shows about the disabling effect of the pain.”
[17] Supra
108Credit will often be particularly important[18] when assessing a plaintiff’s account of their pain and suffering consequences to doctors and the Court.[19] For instance if a plaintiff exaggerates their symptoms or provides an inaccurate medical history, the account may be of less weight.[20] However, some variations are to be expected and regardless of the veracity of the plaintiff’s evidence, reliable medical evidence must not be ignored because the plaintiff is or may not be credible.[21]
[18]Haidar v Transport Accident Commission [2016] VSCA 182 (“Haidar”) at paragraph [30]; Palmer Tube Mills (Aust) Pty Ltd v Semi [1998] 4 VR 439; Transport Accident Commission v Streicher [1998] 4 VR 439 at 448; Petrovic v Victorian WorkCover Authority [2018] VSCA 243 (“Petrovic”) at paragraph [74]
[19] Haden (supra)
[20]Sejranovic v Berkeley Challenge Pty Ltd [2009] VSCA 108 at paragraph [145]; Transport Accident Commission v Zepic [2013] VSCA 232 at paragraph [91]; Papamanos v Commonwealth Bank of Australia [2014] VSCA 167 at paragraph [33]; Haidar (supra) at paragraph [32]; Petrovic (supra) at paragraph [74]
[21]Cakir v Arnott’s Biscuits Pty Ltd [2007] VSCA 104 at paragraph [49]; Petrovic (supra) at paragraph [76]; Pulling v Yarra Ranges Shire Council [2018] VSC 248 at paragraph [51]
109Part of the assessment of the disabling effect of pain is the extent to which the plaintiff is prevented by pain from performing his or her pre-injury employment duties. If a plaintiff is able to return to work, this will, in the absence of other relevant evidence, tend against a conclusion that the pain and suffering consequences of the injury are “serious”.[22] It would ordinarily be difficult to conclude that the pain and suffering consequences of an injury are “at least very considerable.”[23] This is not to say that a return to pre-injury employment or alternative work is somehow determinative against a worker on the issue of pain and suffering consequences[24] and a finding of serious injury can still be made even if there has been a return to full-time employment.[25] The whole of the evidence must be considered.[26]
[22] Tatiara Meat Co Pty Ltd v Kelso [2010] VSCA 12 (“Tatiara”)
[23] Sumbul v Melbourne All Toya Wreckers Pty Ltd [2006] VSCA 292 (“Sumbul”) at paragraph [24]
[24]Stijepic v One Force Group Aust Pty Ltd and Victorian Workcover Authority [2009] VSCA 181 (“Stijepic”) at paragraph [47]; cited by Tate JA (Ashley JA and Hargrave AJA agreeing) in Sutton v Laminex Group Pty Ltd (2011) 31 VR 100 at 115, paragraph [78]
[25]Haden (supra) at paragraph [15]
[26]Tatiara (supra)
110Aside from capacity for work, the Court of Appeal in Haden[27] identified other matters, which, although not a checklist, are relevant to the assessment of whether pain interferes with the ordinary activities of life. These include the effect of pain on the plaintiff’s –
[27] Supra
“· sleep;
·mobility;
·cognitive functioning (whether directly because of the pain or indirectly because of the effects of pain-relieving medication);
·capacity for self-care and self-management;
·performance of household and family duties;
·recreational activities;
·social activities;
·sexual life; and
·enjoyment of life.
Whether and to what extent the matters listed are relevant to the court’s task in a particular case will, naturally, depend on the circumstances of the case”[28]
[28]Haden (supra) at paragraph [16]
111In performing the evaluative task, it is necessary to consider not just what a plaintiff has lost by way of impairment, but also what has been retained.[29] Similarly, if a particular plaintiff is more stoical than others, in that he or she is more willing to put up with pain to maintain function, the injury suffered is not, as a result, to be viewed as less serious.[30] A stoic applicant who has been prepared to put up with pain and suffering and make the best of his or her situation should not be treated less favourably than an applicant who, being of less strength of character, simply resigns himself or herself to the injury.[31]
[29]Dwyer (supra)
[30]Haden (supra) at 5, paragraph [13]
[31]Dwyer (supra) at paragraph [3]; Transport Accident Commission v Kamel [2011] VSCA 110 at paragraph [67]
Evidence
112At the hearing, the plaintiff relied upon four affidavits:
(a) Affidavit of the plaintiff, Roy Ocampo, sworn 31 October 2019;
(b) Affidavit of the plaintiff, Roy Ocampo, sworn 15 July 2021;
(c) Affidavit of the plaintiff’s wife, Mrs Milagros Ocampo, sworn 15 July 2021; and
(d) Affidavit of the plaintiff’s gardener, Mr Teodoro Tuason, sworn 15 July 2021.
113Mr Ocampo gave evidence, confined to adopting his affidavits, and was cross-examined.
114The affidavits of Mrs Milagros Ocampo and Mr Teodoro Tuason were tendered without objection and neither witness was required by the Authority for cross-examination.
115On behalf of Mr Ocampo, various pages of the Joint Court Book were tendered as exhibit A, including the Medical Panel Certificate of Opinion and Reasons for Opinion, as well as various medical reports and other documents. Exhibit B comprised Certificates of Dr Josefina Puno, general practitioner, in respect to Mr Ocampo, dated 25 February 2021 and 25 May 2021.
116The Authority tendered as exhibit 1, surveillance footage of the plaintiff dated 10 May 2021. Exhibit 2 comprised various additional pages of the Joint Court Book, not already tendered, being further medical reports and other documents.
Submissions
Plaintiff’s submissions
117It was submitted on behalf of the plaintiff that:
(a) Mr Ocampo sustained a compensable injury, being a mild aggravation of pre-existing lumbar degenerative changes without radiculopathy on 23 August 2016.
(b) The Medical Panel’s description of the back injury sustained by Mr Ocampo as a “mild aggravation” was binding and conclusive only as to the nature of the injury. It is the Court’s function to determine whether the consequences of the injury satisfy the narrative test.
(c) Mr Ocampo was a credible witness.
(d) Mr Ocampo’s account of the pain and suffering consequences he said he experienced should be accepted. The fact that Mr Ocampo had a “light work” back, or the capacity to do a different job, did not militate against a finding of serious injury. All consequences were required to be considered.
Defendant’s submissions
118The defendant submitted that:
(a) the Court’s consideration of the serious injury application was delineated by the Medical Panel Opinion. Mr Ocampo’s medical condition was as found by the Medical Panel – a permanent, mild, aggravation of pre-existing lumbar degenerative changes – and was not a “serious injury”.
(b) Mr Ocampo was not a credible witness based upon the video surveillance footage and the inconsistencies between what Mr Ocampo said in his first affidavit and the histories he gave to medical practitioners with respect to his sporting and social activities.
(c) Mr Ocampo’s account of his pain and suffering consequences should not be accepted. Although Mr Ocampo was incapacitated from his pre-injury employment as a full-time storeman, he retained a significant residual capacity for work. He had engaged in a fairly significant degree of activity for a lengthy period of time and had continued to perform modified duties on a full-time basis until he was made redundant on 24 January 2018. Further, the medication and treatment he had received was not consistent with a serious injury.
Credibility
119The defendant challenged Mr Ocampo’s credit.
120First, the defendant relied on video surveillance footage, which it said demonstrated Mr Ocampo lifting his grandchild. The defendant contended that this was inconsistent with what Mr Ocampo described in his affidavit, namely his back spasming when he tried to do something strenuous and having “difficulty lifting heavy weights and struggle[s] with lifting things above height”.
121The defendant admitted that it conducted surveillance of Mr Ocampo at his home address. This included a spot check at 11.00pm on 6 May 2021; 5 hours’ surveillance between 10.30am and 3.30pm on 10 May 2021 and 5 hours’ surveillance between 7.30am and 12.30pm on 16 May 2021.
122Having viewed the video surveillance, of which only 55 seconds of footage was played in court, it depicted Mr Ocampo bending into a car, lifting, straightening, walking and carrying his 10-kilogram grandchild, apparently without difficulty, pain, restriction or sign of spasm. Mr Ocampo’s wife was also present.
123An ability to lift his grandchild might, on one view, be seen as being inconsistent with Mr Ocampo’s claimed difficulty to lift heavy weights; however, I have not reached that conclusion. The physical activity depicted on the video footage was relatively minimal; it was performed on only one occasion and, as stated, lasted for only 55 seconds. Even if it is accepted that Mr Ocampo may have carried his grandchild on other occasions, that does not mean that Mr Ocampo did so without pain. In any event, the Vocational Assessment and Labour Market Analysis Report prepared by CoWork Pty Ltd identified that Mr Ocampo was able to lift objects weighing up to 10 kilograms. Furthermore, the limitations placed on lifting by Dr Slesenger, in his report dated 4 November 2019, were that Mr Ocampo should avoid lifting anything over 15 kilograms on an occasional basis and 10 kilograms on a repetitive basis, suggesting that to lift a child of no more than 10 kilograms on an occasional basis would not necessarily have been discouraged or prohibited.
124Having considered Mr Ocampo’s explanation of his conduct in light of all the evidence, I do not consider that the video surveillance footage impugns Mr Ocampo’s credit or means that his descriptions of his back condition were exaggerated. Consequently, I find Mr Ocampo’s complaints in relation to shopping, heavier housework, gardening or dressing credible.
125Second, the Authority pointed to inconsistencies between what Mr Ocampo said in his second affidavit with respect to his participation in sports and social activities and the history he provided to medical practitioners including Dr Slesenger. In Mr Ocampo’s second affidavit, he said that before his back injury he enjoyed playing basketball with friends and he would play every weekend for at least half a day. The history provided to Dr Slesenger was that Mr Ocampo was not engaging in sports or hobbies at the time of the injury and consequently could not have been participating in weekend basketball nor swimming every fortnight at the local pool. It was submitted that Mr Ocampo had a poor grasp of English and neither Dr Slesenger nor Dr Shan had the benefit of an interpreter. The most probable explanation of the inconsistencies was that the various doctors were mistaken.
126Mr Ocampo was cross-examined about his participation in basketball:
Q:“You’ve said in your affidavit that you used to - before your back injury you loved playing basketball with your friends and you played every weekend for at least half a day, do you recall saying that in your affidavit?---
A:Yes, I remember. Yes, I remember because I remember I’d do these things.
Q:Do you remember seeing a Dr Joseph Slesenger for the insurance company in October of 2019?---
INTERPRETER:
Sorry, can you repeat the insurance and when, sorry?
MR McKENZIE:
Q:October 2019 and it was Dr Joseph Slesenger for the insurance company?---
A:Because it’s a long time ago and I have been talking with lots of medical doctors and I cannot recall that particular one.
Q:This doctor says that he saw you and he spoke to you about your condition. This is at page 255, Your Honour, of the joint court book under, ‘Sports and hobbies’. (To witness) Mr Ocampo, the doctor says that you told him that you were not engaging in sports or hobbies at the time of the injury?---
A:That’s true.
Q:And I suggest to you before you got injured, you weren’t playing basketball with your friends, you weren’t doing basketball on the weekends?---
A:That’s not true, I also play basketball with my friends before my injury.”
127I accept that there was some inconsistency in Mr Ocampo’s answers in cross-examination; however, in my view, nothing much turned on this. While Mr Ocampo was noted by the Medical Panel, as well as Dr Slesenger and Dr Shan, to have a reasonable command of English, he nevertheless required an interpreter in dealing with some of the medical experts and at the hearing. For instance, the Vocational Assessment and Labour Market Analysis Report prepared by CoWork, dated 27 March 2020, made the observation that Mr Ocampo “did not demonstrate that he has access to a comprehensive vocabulary. He spoke very fast and in doing so made grammatical errors.” Similarly, Dr Slesenger said in his first report that on examination, Mr Ocampo “interacted reasonably well (although some of the questions had to be reposed)”.
128Having observed Mr Ocampo give evidence, I found him to be a reasonably frank and truthful witness. Even if there were some differences in how he recalled events to different people, in my opinion, the most probable explanation for those differences was that Mr Ocampo misunderstood questions which he was asked. I do not consider that this adversely affected Mr Ocampo’s credit.
129Similarly, the defendant also relied upon inconsistency between Mr Ocampo’s account and what he told Dr Shan about his social activities, including attending a Filipino Community Centre and going in walking groups. In cross-examination, it was put to Mr Ocampo that he attended the Filipino Community Centre and went in walking groups. He denied that he went to Filipino community gatherings currently but said that “sometimes when I meet a Filipino and [they] invite me for a walk, I sometimes force myself to go for a walk”. Again, this evidence does not impugn Mr Ocampo’s credit. He accepted that he sometimes went for walks, albeit with great effort.
130Finally, the defendant pointed to the activities Mr Ocampo admitted to performing, compared with what he said he could not do, as a basis for discrediting his evidence. Specific reference was made to Mr Ocampo telling the Medical Panel about “chainsawing”, compared to Mr Ocampo’s evidence that he tried to help his son “change oil”. In my view, rather than discrediting Mr Ocampo, this example highlighted the language difficulties discussed above. Mr Ocampo said both phrases in the course of cross-examination. Having heard his pronunciation of “chainsawing” and “change oil”, I accept that what was heard by a listener may have been mistaken.
131I have considered the defendant’s submissions in light of Mr Ocampo’s evidence overall and I am not prepared to make an adverse finding as to his credit.
Relevance and use of the Medical Panel Opinion
132It was submitted by the defendant that as per s313(4) of the Act, the Medical Panel opinion that Mr Ocampo’s injury was a mild aggravation of pre-existing lumbar degenerative changes, had to be “adopted and applied” and treated as “final and conclusive by the Court”. The Medical Panel did not find Mr Ocampo’s injury constituted a “serious injury”.
133I was referred to the decision of the Court of Appeal in Yirga-Denbu,[32] and to two decisions of his Honour Judge Wischusen of this Court in Said v Smart Group Management Pty Ltd[33] and Durrant v 101 Warehousing Pty Ltd.[34]The authorities establish that changes in symptoms following delivery of a Medical Panel opinion, can be taken into account in assessing the “severity” of the compensable injury.[35]
[32] Supra
[33] Supra
[34] [2021] VCC 834 (“Durrant”)
[35] Said (supra) at paragraph [18]
134Having considered the authorities, as well as the terms of s313(4) of the Act, I accept that the Court is bound by the Medical Panel Opinion as to the nature of the injury or diagnosis.[36] This means that it is not open to Mr Ocampo to contend that he has an injury or diagnosis other than as expressed by the Panel. On that basis, I find that he has a mild aggravation of pre-existing lumbar degenerative changes. However, determination of whether an injury and its impairment consequences constitute a “serious injury” is a function of the Court and does not depend on characterisation of the injury itself.
[36] Yirga-Denbu (supra) at paragraph [10]
135In assessing whether a plaintiff has a “serious injury” for the purposes of s325 of the Act, the relevant enquiry is not the nature and character of the injury. The focus is on the consequences of the injury or the categories of harm consequential upon the injury to the particular plaintiff. There is no precise equivalence between the “injury” and the “serious injury”. This means that where, as here, a Medical Panel has characterised a medical condition/injury – and not its consequences – as a “mild” aggravation injury, the description of the injury as “mild” by the Medical Panel opinion is of limited assistance in determining whether the consequences of the injury are such that the injury is a “serious injury”.
Injuries suffered by the Plaintiff
136Mr Ocampo claims that his injury constitutes an impairment or loss of body function of his spine.
Low back injury – 22 October 2015
137Mr Ocampo sustained injury to his lower back on 22 October 2015 while lifting heavy loads. The Medical Panel found that CT scans of the lumbar spine dated 29 October 2015 showed smooth and anatomic alignment with maintenance of vertebral body heights. There was a mild, broad-based posterior disc bulge combined with mild bilateral facet joint hypertrophy and degeneration which produced moderate bilateral exit neuroforaminal narrowing.
138Dr Slesenger noted in his first report dated 4 November 2019, that before Mr Ocampo’s injury on 23 August 2016, he was asymptomatic. Mr Kossmann, Dr Slesenger and the Vocational Assessment and Labour Market Analysis Report prepared by CoWork Pty Ltd recorded that Mr Ocampo returned to full duties on 25 November 2015. In my view, Mr Ocampo’s lower back injury on 22 October 2015 recovered to such an extent that it was asymptomatic.
Low back and right elbow injury – 23 August 2016
139Mr Ocampo injured his lower back and right elbow on 23 August 2016 while lifting a carton when the strap broke, causing him to strike his right elbow on the floor.
140Before that incident, Mr Ocampo told the Medical Panel that his lower back was “okay”. When he was unloading a 40-foot container of 20 to 25-kilogram boxes, he felt the onset of pain in both his right elbow and his lower back. The Medical Panel considered that given that Mr Ocampo returned to work following his injury and undertook full-time modified duties until his redundancy in January 2018, his ongoing lower back condition was mild and without any neurologic compromise.
141The Medical Panel concluded that Mr Ocampo was suffering from a mild aggravation of pre-existing lumbar degenerative changes without radiculopathy. I accept that this was the injury which Mr Ocampo sustained to his lower back on 23 August 2016.
Permanence
142The Medical Panel accepted that Mr Ocampo’s lower back condition was permanent in the sense that it is likely to persist for the foreseeable future. Mr Kossmann also considered that Mr Ocampo’s incapacity would continue for the foreseeable future. I accordingly accept that Mr Ocampo’s injury is permanent in the sense that it is likely to persist for the foreseeable future.
Impairment consequences
143To determine whether the plaintiff has suffered a “serious injury”, it is necessary to determine whether the consequences of the plaintiff’s injury can be fairly described as being more than “significant” or “marked” and “at least very considerable” when compared to other cases in the range of possible impairments or losses. To perform this analysis, I am required to bring to account the relevant circumstances personal to the plaintiff and then make a value judgement in accordance with the principles enunciated in Poljak.[37] In assessing the seriousness of the claimed impairment consequences, I am also required to consider both the effects of the impairment and those aspects of the affected body function which remain unaffected.[38]
[37] (Supra) at 140 (per Crockett and Southwell JJ)
[38]Dwyer (supra) at paragraph [27] (Ashley JA); Stijepic (supra) at paragraph [44] (Ashley JA and Beach AJA); Tatiara (supra) at paragraph [77] (Ross AJA), quoting Dwyer (supra) at paragraph [27]
144As set out above, Mr Ocampo sustained injury to his low back on two separate occasions: 22 October 2015 and 23 August 2016. I therefore propose to consider the impairment consequences of each injury, as is required by Petkovski v Galletti.[39] I will then identify whether the impairment consequences of the injury sustained on 23 August 2016 are “serious”.
[39] [1994] 1 VR 436
Consequences of the 22 October 2015 low back injury
145Following the injury sustained to his low back on 22 October 2015, Mr Ocampo experienced pain. He had medical treatment and after a short period of time off work, ultimately returned to work and resumed full duties on 25 November 2015. In my view, the impairment consequences of his back injury at that time were minimal and immediately prior to the low back injury on 23 August 2016, had completely resolved.
Consequences of the 23 August 2016 low back injury
146On 23 August 2016, Mr Ocampo aggravated the injury he had sustained to his low back on 22 October 2015. As a result of that injury, Mr Ocampo sustained a range of impairment consequences.
Mr Ocampo’s experience of pain
147In his first affidavit, Mr Ocampo described the 23 August 2016 aggravation injury and the pain he experienced from it. He said that following the injury, he experienced pain on a daily basis and often woke at night. He described the pain as a “severe pain in the area of my lower back”. He said he was placed on light duties, but after working a full day, “often experienced severe exacerbations of my pain”. He said that pain precluded him from participating in his sporting and recreational pursuits, and from driving long distances. He continued to consult his general practitioner throughout 2016 and 2017 complaining of back pain and continued to attend physiotherapy.
148By 2019, he had been referred for an MRI scan of his lumbar spine. The radiologist described mild L3-L4 lumbar canal stenosis secondary to a central and right L3‑L4 disc prolapse and facet joint hypertrophy, causing impingement of the right L4 nerve root within the right lateral recess. There was a minor L4-L5 lumbar canal stenosis secondary to a diffuse L4-L5 disc bulge which was impinging the thecal sac. There was also moderate to marked mid to lower lumbar spondylosis and mild to moderate bilateral L3-L4, L4-L5 and L5-S1 facet joint osteoarthritis.
149Mr Ocampo saw Dr Slesenger on 29 October 2019 and described residual lower back pain which was “severe and constant”. The pain was radiating into Mr Ocampo’s mid back, but not to his legs.
150When Mr Ocampo presented to Mr Kossmann, whose report was prepared on 10 July 2020, Mr Ocampo was still complaining of ongoing pain in his lumbar spine. The pain appeared to have worsened and by that time, was radiating intermittently into both of his knees. He could walk but was having difficulty putting on shoes and socks and was having difficulty sleeping.
151When seen by Mr de la Harpe on 4 August 2020, Mr Ocampo had ongoing low back pain which was aggravated by activity. He intermittently suffered significant pain and suffering as a result of exacerbation of his degenerative and mechanical back pain. This was impacting his social and domestic activities.
152A medical certificate provided to CoWork Pty Ltd for the period from 25 November 2019 to 25 November 2020 diagnosed “lumbosacral pain” and “ongoing back pain with sciatica pain”. CoWork described Mr Ocampo’s attendances on a job coach and his inability to manage an aged care course due to his pain.
153Mr Ocampo was reviewed by the Medical Panel on 4 and 10 March 2021. He said that he continued “to have constant lower back pain”. It was described as “constant central low back pain of variable intensity that does not radiate from the spine”. He said that when his back is painful “I do nothing”. He said he could “hardly walk”. The pain affected his ability to enjoy basketball, swimming or gardening and impacted on intimacy. When his low back was not painful, he could drive his wife to work, shop and cook a little, and he was independent in activities of daily living.
154Mr Ocampo’s account of his pain was reflected in Dr Puno’s correspondence with the Medical Panel which described how he struggled with ongoing pain. Dr Puno commented that given Mr Ocampo’s age, the pain was envisaged to get worse.
155After considering his account of his pain, the Medical Panel considered his condition to be “mild” and his analgesic requirements to be “extremely modest”.
156In his second affidavit, Mr Ocampo said that his low back pain was generally worse in cold weather and worse if he sat or stood for too long. He got bad flare-ups. He said he had been told by Mr de la Harpe that surgery would not help his back.
157Medical records in the period after Mr Ocampo was seen by the Medical Panel record the flareups and exacerbations in pain he had experienced which had caused him to be totally incapacitated for a day or more.
158The plaintiff’s wife, Mrs Milagros Ocampo, described that when Mr Ocampo had an onset of back pain, his face changed. He would not bend to get things from the floor or low positions. He knelt awkwardly, and he spent a lot of time lying down. He was not someone who complained much, but sometimes he said he had bad back pain and asked for help to do things.
159The weight to be attached to the plaintiff’s account of the pain experienced will depend upon an assessment of the plaintiff’s credibility. I have found that Mr Ocampo is a credible witness. Once this is accepted, there is no reason to reject his descriptions of the pain he has suffered.
160Having considered Mr Ocampo’s description of his pain, and what he told the various medical practitioners, in my view, as a result of his injury, Mr Ocampo has constant central low back pain of variable intensity. He has flareups and exacerbations of the pain which are quite debilitating when they occur. The pain is daily pain which impacts many aspects of his life.
Medication and medical treatment
161Mr Ocampo explained in his first affidavit that his pain required treatment by frequent medication depending on the weather. He had previously taken Lyrica.
162In his second affidavit, Mr Ocampo said that he now takes Targin 5 milligrams or 2.5 milligrams, every one to two days in cold weather. He also takes regular Panadol, which he said he took less frequently than he might otherwise, due to the fact that he experienced an upset stomach. He also applies Voltaren Gel to his back and undergoes physiotherapy once per fortnight.
Return to work
163Following the 23 August 2016 injury, Mr Ocampo was off work for one week and then resumed light duties in the pick area, where he remained working on full-time hours until 24 January 2018, when he was made redundant. He has not returned to work since.
164The defendant submitted that Mr Ocampo had been able to return to work. It was said that this tended against a conclusion that his injury constituted a “serious injury”. On the other hand, Mr Ocampo submitted that because he was able to return to work and had capacity to do a different job, it did not mean that what he had lost was irrelevant. The starting point was whether the injury caused him permanent loss of a career he enjoyed. A residual work capacity reflected positively on him and did not preclude a finding of serious injury.
165While it is true that where a plaintiff can continue to work or return to work it will ordinarily be difficult to conclude that the pain and suffering consequences are “at least very considerable”,[40] a stoical plaintiff who puts up with pain and suffering should not be treated less favourably than another person who, being of less strength of character, simply resigns him or herself to his or her injury.[41] The fact that Mr Ocampo returned to work is not determinative of his application, particularly in circumstances where he said he continued to endure constant pain.
[40]Sumbul (supra) at paragraph [24]; Stijepic (supra) at paragraph [47]; Haden (supra) at paragraph [15]
[41]Dwyer (supra)
166In any event, consideration of Mr Ocampo’s affidavits demonstrates that although he was able to return to work after his low back injury on 23 August 2016, he was only able to do so by undertaking alternative lighter duties.
167Mr Ocampo said in his first affidavit that he had been made redundant and he was concerned about his ability to find work. In his second affidavit, he said that he has not found work since 2018 and he misses being a storeman, the social aspects of his job, his friends, and being part of a team. His wife also confirmed that he misses his friends.
168Having considered the evidence, I do not accept that Mr Ocampo’s redundancy was the result of his injury. I appreciate that he has lost the social aspects of his job and that he misses his friends and being part of a team, but I do not consider that these are consequences of his impairment. On the other hand, I accept that Mr Ocampo will never be able to resume full-time duties in his former or a similar role following the injury he sustained on 23 August 2016. In that sense, he has lost the ability to do the type of work which he enjoyed in his former career. As was accepted by the Medical Panel, he will never be able to return to a storeman role. I consider this a significant impairment consequence.
Interrupted sleep
169In his first affidavit, Mr Ocampo described the effects of the pain on his ability to sleep. He said that he experienced pain on a daily basis and often woke at night in pain. In his second affidavit, he said that his sleep is now very poor because of back pain. He said that he rolls around all night and cannot get comfortable. His wife has to massage his back, and he only gets three to four hours’ sleep a night. He then naps most afternoons for about an hour.
170Mrs Milagros Ocampo confirmed that she sleeps in the same bed as Mr Ocampo and almost every night he tosses and turns. It disturbs her sleep and at least twice a week he wakes and tells her that his back is sore, and it is necessary for her to massage it with Voltaren Gel.
Mobility
171Mr Ocampo described having interrupted or limited mobility in terms of sitting, standing, walking, bending or lifting.
Activities of daily living
172Mr Ocampo said in his first affidavit that the injury he sustained to his low back has resulted in an inability to participate in daily activities. In his second affidavit, he explained, and Mrs Milagros Ocampo confirmed, that several times per week he is now unable to dress himself. His wife helps him to put on his shoes and socks and sometimes his t-shirts. He can go shopping but his wife now carries the heavier items. He can do a little cooking, but he is unable to participate in heavier housework activities.
Sports and hobbies
173Mr Ocampo said in his first affidavit that as a result of his injury, he is no longer able to participate in his pre-injury hobbies of basketball, swimming and gardening or to enjoy social activities. In his second affidavit, Mr Ocampo explained that basketball is a big sport in Filipino culture. He said that previously he would play informal games every weekend for at least half a day and then eat and drink afterwards. His wife confirmed that he would be out of the house for three to four hours and he was always in a great mood when he came back. It was a fun, competitive and social activity. Although Mr Ocampo’s evidence about playing basketball was challenged, I accept that he enjoyed playing basketball before his low back was injured and that he has lost the ability to participate in this sport.
174Similarly, Mr Ocampo said that he previously enjoyed swimming and went fortnightly to the local pool. This was confirmed by Mrs Ocampo. Again, although Mr Ocampo was cross-examined about the veracity of this, I accept that he can no longer undertake this activity.
175Mr Ocampo also described gardening as an activity that he previously enjoyed doing with his wife every weekend. He said he would do the mowing, pruning, cleaning and the heavier work. He found it to be a good way to spend time with his wife and he was proud of his garden. In his second affidavit, he said that he now has to pay someone to do the gardening. This was confirmed by Mrs Ocampo and also Mr Teoduro Tuason, Mr Ocampo’s gardener.
Driving
176In his first affidavit, Mr Ocampo described his inability to drive for long periods of time due to the pain he experiences. Dr Slesenger’s report dated 4 November 2019 confirmed that Mr Ocampo could only drive for up to 30 minutes at a time.
Findings
177Having regard to all of the evidence, I find that by reason of Mr Ocampo’s low back injury:
(a) He has constant daily pain with flareups and exacerbations causing total incapacitation for a day or more at a time;
(b) He receives frequent medication for his pain including Targin 5 milligrams or 2.5 milligrams which he takes every one to two days in cold weather, and regular Panadol. Additionally, he undertakes physiotherapy once a fortnight and receives regular massages;
(c) He is regularly unable to sleep;
(d) He has interrupted or limited mobility in terms of sitting, standing, walking, bending or lifting;
(e) He is unable, several times a week, to dress himself. He is unable to participate in heavier housework activities;
(f) He is unable to participate in pre-injury hobbies and social activities, including basketball, swimming and gardening;
(g) His ability to drive is now limited to up to 30 minutes at a time;
(h) Although he was made redundant in January 2018 for reasons unrelated to his injury, because of his low back injury, he nevertheless has lost the ability to return to work in the same type of job as his pre-injury employment.
178I have weighed each of these consequences and evaluated them against the range of possible impairments across the spectrum of other cases and impairments. Having done so, I have concluded that Mr Ocampo’s impairment consequences are more than “significant or marked” and “at least very considerable”. The consequences to him, as he has described, have been “devastating” and as his wife observed, his “life has completely changed”.
Conclusion
179I will grant leave to the plaintiff to commence a proceeding for pain and suffering damages.
180I will hear argument with respect to costs.
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